Drawing The Line

Buying land with the benefit of planning permission can bring with it unexpected difficulties when the subsequent development is not carried out by the party who initially obtained the planning permission. Take a look at Lindsay Dixon’s advice to make sure the line is drawn correctly…

The case of Signature Realty Limited -v- Fortis Developments Limited highlighted the importance of obtaining an assignment of the copyright, or a licence to use, the Architect’s drawings that formed the basis of the planning permission to avoid infringing copyright in those drawings.

Signature Realty was a property developer which obtained planning permission for a block of flats based on drawings prepared by an Architect, but was then unable to secure finance to purchase the site and complete the project. The site was therefore sold to Fortis. Planning permission had been granted on the condition that the development was completed in accordance with the Architect’s drawings, which had been published on the local authority planning portal with a copyright notice. Signature Realty issued proceedings against Fortis for infringement of the copyright in the drawings.

The drawings had been used by Fortis for marketing the properties, tendering, producing AutoCAD versions and constructing the building. The Court held that there was sufficient intellectual skill in the drawings for copyright to exist and that Fortis had in fact infringed the copyright in the drawings.

The Court did not accept that Fortis had an implied licence from the Architect to use the drawings on the basis that they had paid a premium for the planning permission. Simply, Fortis had not engaged the Architect and it had not bought the land from the copyright owner.

The Court ordered an enquiry as to damages or an account of profits. The Court did not consider it appropriate to award additional damages under section 97(2) Copyright, Designs and Patents Act 1988 as there had not been a flagrant infringement and the benefit gained had not been as a direct result of the copyright infringement.

Ordinarily, in a situation such as this, the site owner will instruct the Architect to prepare design drawings before selling the site to a third party with an implied licence to use the drawings to complete the works required on the site to comply with the planning permission. In this case, however, the property developer who commissioned the drawings and obtained the planning permission was not the original land owner or the developer who built the building. Accordingly, they did not have any implied licence which they could transfer when they sold the land and therefore the copyright in the Architect’s drawings was infringed.